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Thursday, 7 April 2016

Linking to unlicensed content? This is
not in itself an infringement of Article 3(1) of Directive 2001/29 (the InfoSoc Directive), said this morning Advocate General (AG) Melchior Wathelet in
his Opinion in GS Media, C-160/15.

This is big news, in that the AG
advised the Court of Justice of the European Union (CJEU) do depart
significantly from the jurisprudence inaugurated with the (in)famous 2014
decision in Svensson[here for Kat-coverage].

Background

As readers will remember, this
reference for a preliminary ruling from the Dutch Supreme Court has arisen in
the context of litigation between the publisher of Playboy (Sanoma)
and GS Media, over provision by the latter - through GeenStijl.nl - of
hyperlinks to other websites hosting leaked photographs of Dutch starlet Britt Dekker. These photographs were due for publication in a 2011 issue of Playboy.

More specifically, in
2011 [prior to the
publication of the Playboy issue in question] GS Media published a report with
the title ‘[obscenity] leaked! Nude photos ... Dekker’. The report also
included part of one of the photographs in the top left-hand corner (‘the
cutout’). The report ended with the following words: ‘And now the link with the
pics you’ve been waiting for. Whoever [obscenity] first, [obscenity] first.
HERE. ...’. By clicking on a hyperlink, indicated by ‘HERE’, readers were
directed to an Australian data-storage website called Filefactory.com [where the photographs appeared to be freely
accessible, although the AG noted that whether this was the case is not entirely
clear: see para 71 of the Opinion]. By clicking on the following hyperlink, they could open a new window
which contained the button ‘DOWNLOAD NOW’. By clicking on the button, the
readers opened a file in zip format containing 11 files in pdf format, each of
which contained one of the photographs.

Despite Sanoma's
demands, GS Media refused to remove the hyperlink in question (although the
photographs were removed from the Filefactory.com website), and later on
published two further reports with new hyperlinks to Dekker's photographs.

AG Wathelet

GS Media was
successfully sued before the Amsterdam District Court and the Amsterdam Court
of Appeal, although these courts considered different aspects. The former held
that by posting those hyperlinks, GS Media’s conduct had been unlawful
because it encouraged visitors to GeenStijl to view the photographs illegally
posted on Filefactory.com which, without those hyperlinks, would not have been
easy to find. In contrast, the Court of Appeal held that, on the one hand,
GS Media had infringed copyright by posting a cut-out of one of the photographs
on the GeenStijl website but, on the other hand, had not made the
photographs available to the public by posting the hyperlinks on its
website.

The decision of the
Court of Appeal was appealed before the Supreme Court, which decided to stay
the proceedings and seek guidance from the CJEU.

The reference for a preliminary ruling

As clarified by the
AG, in a nutshell what the Dutch Supreme Court is seeking guidance on is
whether:

Article 3(1) of the InfoSoc Directive
must be interpreted as meaning that the provision on a website of a
hyperlink to another website operated by a third party, which is
accessible to the general internet public and on which works protected by
copyright are made available to the public, without the authorisation of
the copyright holder constitutes an act of communication to the public.

The fact that the person who posts the
hyperlink to a website is or ought to be aware of the lack of consent by
the copyright holder for the initial communication of the works on that
website is important for the purpose of Article 3(1) of this
directive.

The fact that a hyperlink has facilitated
access to the works in question is relevant in accordance with Article
3(1) of this directive.

The AG analysis

The AG noted at the outset that this
reference comes in the wake of the CJEU judgments in Svensson and BestWater[here].

No need to ask first

No need for the rightholder's
authorisation

The AG began his analysis by
noting that, whilst it is true that in Svensson
the CJEU often referred to the rightholder's authorisation to the initial
communication, "no reference is made in the operative part to the issue of
whether or not the copyright holder authorised the initial making available of
the protected work." [para
39; this, frankly, is a bold move on the side of the AG, who is clearly
suggesting that the CJEU should depart from Svensson, without explicitly
saying so - at least in this part of the Opinion (keep
reading) - and by making actually the Opinion look like it was in line with Svensson and
its progeny]

Furthermore, continues the Opinion,
in BestWaterthe relevant work [a YouTube video] the link in question referred to was not even
published with the authorisation of the copyright holder. However, in
accordance with its decision in Svensson the Court ruled that
Article 3(1) of the InfoSoc Directive "had not been
infringed" [para 40; here the language is slightly
imprecise, as it incorrectly suggests that the CJEU acted as a court on the
merits, while in the case of references for a preliminary ruling the Court only
provides the correct interpretation of relevant provisions of EU law, leaving
it to the referring court to rule on the merits, ie infringement].

"Consequently, the order in BestWater
... seems to indicate that the fact that the copyright holder did not
authorise the initial communication to the public was not relevant for the
purposes of Article 3(1)" [para
41].

This said, in order to answer the
questions referred by the Dutch court, the AG reviewed the two relevant cumulative criteria [ie: (1) an act of communication of a work; (2) to a (new) public] under Article 3(1)] in order to address the
observations of Portugal and the Commission, which had held the view that to
have an act of communication an actual transmission [pursuant to Recital 23 in the preamble to the InfoSoc Directive, and
also the pre-SvenssonOpinion of the European Copyright Society] of a work is necessary.

An act of communication requires an
intervention

The AG recalled that in Svensson the
CJEU held that "for there to be an “act of communication”, it is
sufficient, in particular, that a work is made available to a public in such a
way that the persons forming that public may access it, irrespective of whether
they avail themselves of that opportunity".

According to the AG this approach is
not correct in relation to hyperlinks:

"Although
it is true that hyperlinks posted on a website make it much easier to find
other websites and protected works available on those websites and
therefore afford users of the first site quicker, direct access to those
works, I consider that hyperlinks which lead, even directly, to protected
works do not ‘make available’ those works to a public where
the works are already freely accessible on another website, but merely
facilitate the finding of those works. As the Portuguese Republic states in its
observations, the act which constitutes the actual ‘making available’ was the
action by the person who effected the initial communication. [para 55]

The AG supported this view by referring
to the FAPLjudgment [here],
in which the CJEU held that without the intervention, for example,
of a hotel to offer a television signal in its rooms via television sets, the
work would not have been accessible to the hotel’s customers [para 56].

It would follow that "in order to
establish an act of communication, the intervention of the ‘hyperlinker’ must
be vital or indispensable in order to benefit from or enjoy
works." [para 57]

As a result,

"hyperlinks
posted on a website which direct to works protected by copyright that are
freely accessible on another website cannot be classified as an ‘act of
communication’ within the meaning of Article 3(1) of Directive 2001/29
since the intervention of the operator of the website which posts the
hyperlink, in this case GS Media, is not indispensable to the making available
of the photographs in question to users, including those who visit the
GeenStijl website." [para
60]

It follows that, lacking one of the two necessary
conditions, ie an act of communication, there is no issue of Article 3(1) of
the InfoSoc Directive even coming into consideration.

The linker's motives or awareness of
unlawful nature of the content are irrelevant

The AG did not stop here, and appeared
to reject the very idea that psychology should be part of copyright.

In fact, he held that "in the
absence of an act of communication within the meaning of Article 3(1) of
Directive 2001/29, GS Media’s motives and the fact that it was or ought to have
been aware that the initial communication of those photographs on the other
websites had not been authorised by Sanoma or that the photographs had also not
been previously made available to the public with Sanoma’s consent are not
relevant under that provision." [para
63]

The 'new public' criterion is rubbish inapplicable
in this case

Although the first of the two
cumulative conditions required for the applicability of Article 3(1), ie an act
of communication, would not be met in this case, the AG nonetheless considered
the second condition that communication of a work is to a public.

The AG rejected the 'new public'
criterion adopted in Svensson, and held that "the criterion of
a new public is applicable only where the copyright holder has authorised the
initial communication to the public. Since there is no such authorisation in
the main proceedings, the criterion of a ‘new public’ is not
applicable." [para 67]

Circumventing links are not OK

The AG then noted that "if a
hyperlink makes it possible for users of the site on which it appears to
‘circumvent restrictions’ put in place on third-party websites to limit
access to protected works, the hyperlink in question constitutes an
indispensable intervention without which those users could not enjoy the works.
Accordingly, that intervention makes the works in question available to
visitors to the website in question, in this case visitors to the GeenStijl
website, and therefore constitutes an act of communication to a public which
must be authorised by the copyright holder pursuant to Article 3(1) of
Directive 2001/29." [para
73]

No other circumstances should be taken
into account

The AG then considered whether there
are other circumstances which should be taken into account when answering the
question whether there is deemed to be a ‘communication to the public’ if, by
means of a hyperlink, access is provided to a work for which authorisation has
never been given by the copyright holder for it to be made available to the
public on a website.

He answered in the negative, observing
that a Member State cannot give wider protection to copyright holders by laying
down that the concept of ‘communication to the public’ includes a wider range
of activities than those referred to in that provision.

The Svensson decision as summarised by the AG

Linking within the scope of copyright?
Not a good idea in general

At paras 77 and 78 the AG provided a
more general observation:

"[A]side
from the fact that, in principle, the posting of the hyperlinks in the main
proceedings does not ... constitute a ‘communication to the public’ within the
meaning of Article 3(1) of Directive 2001/29, ... any other interpretation
of that provision would significantly impair the functioning of the Internet
and undermine one of the main objectives of Directive 2001/29, namely the
development of the information society in Europe. Such an interpretation
could also distort the ‘fair balance of rights and interests between the
different categories of rightholders, as well as between the different
categories of rightholders and users of protected subject-matter’.

It
is a matter of common knowledge that the posting of hyperlinks by users is both
systematic and necessary for the current internet architecture ... [A]s a
general rule, internet users are not aware and do not have the means to check
whether the initial communication to the public of a protected work freely
accessible on the internet was effected with or without the copyright holder’s
consent. If users were at risk of proceedings for infringement of copyright
under Article 3(1) of Directive 2001/29 whenever they post a hyperlink to
works freely accessible on another website, they would be much more reticent to
post them, which would be to the detriment of the proper functioning and the
very architecture of the internet, and to the development of the information
society."

The AG also added [para 79] that "extending
the concept of ‘communication to the public’ to cover the posting of hyperlinks
to protected works freely accessible on another website would require action to
be taken by the European legislature."

Remedies available to copyright
holders: suing those who posted the works without consent or seeking an
injunction

Finally, the AG noted excluding
hyperlinks from the scope of copyright does not mean depriving copyright
holders of remedies to enforce their rights.

The relevant rightholder could in fact:

sue the person who effected the initial
communication to the public without his authorisation. The AG however conceded
that "as that person is unknown in this case, such proceedings hold no
real interest for the copyright holder" [para
81]; or

seek an injunction pursuant
to Article 8(3) of the InfoSoc Directive and the third sentence of
Article 11 of the Enforcement Directive against operators of websites such
as Filefactory.com and Imageshack.us which act as intermediaries within
the meaning of those provisions, since their services are likely to be used by
users of such websites to infringe intellectual property rights [paras 82 ff].

Conclusion

The Opinion of AG Wathelet could signal
a major departure from the approach taken in Svensson, should the
CJEU agree with it.

The broader practical considerations
undertaken at paras 77 to 79 appear sensible, although it may be doubtful
whether linking to unlicensed content freely accessible on a third-party website
should be always considered outside
the scope of copyright protection, especially in egregious cases (eg websites
that provide links to unlicensed works and have this at the core of their
business models).

On a final note, it is surprising or -
rather - depressing to observe that after Svensson, after BestWater, GS
Media is the first linking case relating to Article 3(1) of the
InfoSoc Directive on which the CJEU has sought an AG Opinion. Perhaps the mess
created by Svensson could have been avoided simply by thinking
that the issues at stake there were not as straightforward as NOT to require
some careful analysis by means of an AG Opinion prior to the actual decision.

7 comments:

Anonymous
said...

Hello, thank you for this report and related comments, Eleonora! Could it be possible to explore a different path rather then saying that linking falls outside the scope of copyright (as it is even suggested by Directive 2000/31/EC where linking is not included among the ISPs' tipified activities)? Could we say that linking may infringe copyright and the assessment of the infringement should relate to the three-step test or the application of a fair use clause? This latter question being inspired by parraphs 78 and 79 of the AG's opinión? Thank you.

"although it may be doubtful whether linking to unlicensed content freely accessible on a third-party website should be always considered outside the scope of copyright protection"

The question is not whether it should be considered outside the scope of copyright protection, but whether it should be covered by CP including MA. There are several other remedies to deal with such cases (intermediary / secondary liability + unfair competition + unfair market prices)... Online linking is as much a CP as it is to write in a sheet of paper the physical or digital location of a work

My understanding is that the defendant here was found liable in the Dutch court under secondary liability principles. While secondary liability in copyright has not been harmonized, in many national laws it appears a more sensible way of separating "egregious" cases from the kind of linking that should not fall within the scope of liability.

Can somebody explain me please how this position is compatible with par.16 of Bestwater? The par.16 explicitly makes reference at the "freely accessible" criteria like Svensson, but it adds in the same time "with the right holders authorization". For me, Bestwater clearly states that a work of mind is not "freely accessible" if the upload has been made without the right holders authorization. I've obviously read it wrong, but why ? Where?Thomas.

Surely AG Wathelet's approach would have the effect of ensuring that (contrary to the express provisions of the Directive) the making available right is exhausted (at least in relation to a section of the public) once the rightholder has authorised making available to that section of the public?

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